Sec 377: The battle for identity

Two years after the Supreme Court dismissed a review petition filed in Suresh Koushal vs Naz Foundation, in which the court had held Section 377 of the Indian Penal Code to be constitutional, the case has been listed for Tuesday in a curative petition challenging this decision.

Section 377 of the IPC is a potent device and symbol of institutionalised homophobia and discrimination against lesbian, gay, bisexual and transgender (LGBT) persons in India. Drafted in 1860 by the British in vague and imprecise language, the law uses terms such as “carnal intercourse against the order of nature” and “unnatural offence”.

The reason partly was that the British administrators were uncomfortable using specific terms for homosexual sex and so they left the law vague. While technically, the law covers all non-penile-vaginal sexual intercourse, over a period of time, this law has been used mostly to arrest non-consensual sex or acts of rape which did not fit into Section 375 and 376 — the rape law that were defined very narrowly until the Criminal Law (Amendment) Act, 2013. Section 377 was also used in cases of child sexual abuse since there was no specific law to deal with sexual violence against children until the Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012. Section 377 has been used in cases of bestiality, which is not covered by other provisions of the IPC.

The case in court, however, does not deal with any of these categories of offences. It challenges the use of Section 377 to arrest adults for consensual sex. In 2009, the Delhi high court, in a much-celebrated decision, “read down” the law, holding that it was not applicable to consensual sex between adults in private. In effect, this led to the decriminalisation of LGBT persons, since it meant that they were free to have sex with a person of their choice, irrespective of that person’s gender or sexual orientation. The Delhi high court’s decision came after an eight-year-long legal battle that began to attract massive public attention by the time it reached its climax. The then UPA-I government was divided in its stand in the court, with the health ministry supporting the reading down of the law, while the home ministry opposed it.

The Delhi high court in its memorable judgment held that Section 377 was violative of the right to life and dignity, and the right to equality of LGBT persons. The court interpreted “sex” to mean “sexual orientation” in Article 15(2), the non-discrimination clause in the Constitution. In words that reverberate loudly even today, the court held that it would uphold constitutional morality rather than popular morality, thus asking the government to abide the secular values of the Constitution rather than the moral codes of any religion.

The Delhi high court’s decision was challenged in the Supreme Court by an assorted group of religious and conservative groups and individuals. In a peculiar way, the high court judgment seemed to galvanise these conservative groups from across the political spectrum. They claimed that the high court judgment would lead to a breakdown of the moral fabric of the Indian society. They also argued that it was not for the courts to decriminalise homosexuality and that it was the Parliament that was the appropriate forum for this.

More than four years after the Delhi high court’s decision, the Supreme Court, agreeing with the contentions of this motley bunch of conservative opinion, decided to overturn the high court’s decision. In a badly reasoned judgment, the court held that Section 377 was constitutional, but Parliament was free to legislate on the matter. This despite the UPA-II government wholeheartedly supporting a reading down of the law in the court, and very strong evidence in the form of affidavits, reports and testimonies that were presented before the court showing that the law does adversely impact the rights of LGBT persons.

The Supreme Court’s judgment was challenged in a review petition, which was dismissed. The matter was then argued through a curative petition, a relatively recent judicial innovation that enables the Supreme Court to correct mistakes in judgments where there is gross miscarriage of justice or where principles of natural justice have not been followed.

It says something about the grit and determination of LGBT rights activists and the lawyers fighting this case that they were able to get an open hearing for the curative petition. Having come this far, it is understandable that there is much nervous anticipation for Tuesday’s court hearing. Since there is hardly any precedence the court cannot rely only on its previous decisions. The Supreme Court has to balance its duty to ensure justice for millions of people whose rights will be affected by this decision, while ensuring that there are cogent reasons that dictate its curative power is exercised in this particular matter. The court has the option of admitting and hearing the matter, referring the matter to a Constitution Bench of five or more judges or dismissing the case. If the curative petition is dismissed, it may be years before another constitutional challenge to 377 is brought before the courts.

The 377 litigation has become the defining legal battle of our generation, gathering the support of leading senior lawyers, many of whom will be in court on Tuesday. Whatever the outcome of today’s hearing, the legal battle against Section 377 has politicised generations of queer activists, sparked furious public discussion, given rise to fierce debates within the LGBT community, influenced popular culture and raised awareness around sexuality and gender-related issues at an unprecedented scale. All eyes will be on the Supreme Court on Tuesday, with the hope that the court will take the courageous and just step of correcting its mistake.

The writer is a lawyer and research associate with Sarai — Centre for the Study of Developing Societies (CSDS), Delhi.